Criminal Law – mutually
destructive versions on two main issues – court a quo
deciding to call witness for purpose of resolving dispute on one
issue in terms of section 202 of Criminal Procedure and Evidence
Act,
1981 – trial court subsequently deciding not to call such
witness on the grounds that his evidence might be inadmissible
–
witness not called but appellants convicted.

Held on appeal:

That the person’s
evidence appeared to be essential to the court a quo to
enable it to arrive at a just decision of the issue in question;

That it was therefore
imperative for the person to be called;

That there was no
justification for the subsequent decision not to call him;

That the trial court must have
had a reasonable doubt as to whether the Crown’s version of
the disputed issue had been established;

That both main issues to be
determined at the trial were closely connected to each other and the
versions on both were mutually
destructive

That in the circumstances the
Crown had failed to establish the appellants’ guilt beyond
reasonable doubt. Appeal accordingly
allowed.

JUDGMENT

MELUNSKY,
JA:

[1]
The five appellants were arraigned in the High Court on a charge of
murdering a young man, Thabang Mokoma (the deceased), on
17 December
2005. They all pleaded not guilty but the court (Teele AJ and
assessors) convicted them as charged. After a finding
that
extenuating circumstances existed the appellants were each sentenced
to imprisonment for a period of ten years. This is an
appeal against
the convictions and sentences.

[2]
The deceased died as a result of a severe head injury which was
apparently due to a blow or blows from a blunt object. With
the
appellants’ consent, part of the post-mortem report was read
into the record but the report was not handed in as an exhibit
nor
was the medical practitioner who performed the post-mortem
examination called by the Crown. She was, however, called by the
learned judge a quo during the defence case. I will later
refer to an aspect of the medical evidence. At this stage it is only
necessary to add that,
apart from any injuries to the head, there
were marks “all over the (deceased’s) body”
consistent with his having
been beaten with a blunt object.

[3]
For the sake of convenience I will consider the evidence in two
sections, one being the circumstances relating to the deceased’s
death and the other dealing with admissions allegedly made
thereafter. Of course the guilt of the appellants must be decided on
the totality of the evidence but for the purposes of this appeal the
second aspect seems to me to be of more significance than
the first.
I add that there is no direct evidence relating to the assault or
assaults that led to the deceased’s death but
the
circumstantial evidence in that regard has been covered in detail in
the judgment of the court a quo and in the arguments of both
counsel in this Court. In the particular circumstances of this
appeal, therefore, there is no need
for me to do more than to give a
brief outline of the Crown evidence and that of the appellants.

[4]
On 17 December 2005 the deceased was a candidate for initiation at an
initiation school (known as a “Mophato”) for
the purpose
of achieving his rite of passage into adulthood. The Mophato was
owned by PW4, PW1 was the senior instructor at the
institution and
PW2 was his assistant. Apart from the admission of certain statements
with the consent of the appellants, the Crown
called one other
witness, PW3, who, like the deceased, was a prospective initiate. It
is neither necessary nor possible to describe
the esoteric rituals
involved in the initiation process. It suffices to say that during
the initiatory process the candidates are
taught to sing certain
songs. The appellants further contended – a proposition that
was disputed by the Crown witnesses –
that the instructors are
entitled to inflict moderate corporal punishment on those who are
being instructed in appropriate circumstances.

[5]
During the night in question the first four appellants, who had all
been through the initiation process at some earlier time,
arrived at
the Mophato. PW1, PW2 and PW3 were present and so was the deceased.
The appellants, without objection by PW1, proceeded
to instruct the
deceased to sing a certain song. The deceased complied with their
request and the appellants then left the initiation
school. All of
the aforegoing is common cause. Shortly after the appellants’
departure, according to the evidence of PW1
and PW2, it was noticed
that the deceased was no longer at the school. They organised a
search but were unable to find him.

[6]
Later that night all five appellants arrived at the Mophato together
with the deceased. PW1 and PW2 testified that on their
arrival the
deceased was tied to the neck of a horse. There were apparent
differences between their evidence as to the manner in
which he was
positioned on the horse but nothing turns on this as the court a
quo did not accept that particular part of their evidence. PW3
told the trial court that when he awoke during the night he saw the
deceased walking towards the school with some difficulty and with PW1
holding him.

[7]
What is clear according to the evidence of the Crown witnesses is
that the deceased, on his arrival, had obviously sustained
severe
injuries. Namely a wound to the head and whipping marks all over his
body. He was, they testified, in a desperate condition
and died
shortly thereafter. The Crown witnesses were emphatic in their denial
that the deceased sustained any injuries at the
school, either before
his departure or after his return. In particular PW1 and PW2 denied
the defence’s assertion that they
had beaten the deceased at
any time.

[8]
A very different version was put forward by the defence. In short
their account of the occurrences of the events may be stated
as
follows: after leaving the Mophato the first appellant (who had
temporarily separated from the others) came across the deceased
who
was running towards him. He called the second and third appellants
and after their arrival they asked the deceased what had
happened.
The deceased claimed that he had run away from the initiation school
because he had been assaulted by PW1. The appellants
examined him and
found that he had a wound on his head and “whip marks” on
his body. The first appellant went to call
the fourth and fifth
appellants, who were related to the deceased. The appellants decided
to return to the Mophato with the deceased.
This they did. On the
return journey some of the appellants were on horseback, while the
others and the deceased walked. On their
arrival at the initiation
school and after a short exchange between the appellants and PW1, the
latter tied the deceased’s
hands with a rope and he, PW2 and a
certain David proceeded to beat the deceased with sticks. The third
appellant attempted to
intervene while the assault on the deceased
was being carried out and the appellants then returned to their
respective homes. On
the following day they learned that the deceased
had died and they went back to the Mophato. The appellants all denied
that they
had assaulted the deceased.

[9]
This is an appropriate stage to set out the accounts of admissions
allegedly made after the death of the deceased. In this regard
a
statement made by the second appellant to PW1, (according to the
latter’s evidence), to the effect that the first appellant
had
struck the deceased on his head, should be disregarded. The second
appellant denied making the statement and it was clearly
inadmissible. Of far more importance is the evidence of the school
owner, PW4. He testified that on the morning following the death
of
the deceased, there was a gathering at the school. Present were five
members of the initiation committee, PW1 and PW2, all the
appellants
and a number of other people. PW4 said that he asked the appellants
individually who had assaulted the deceased. In
response to his
questioning each appellant admitted that he had taken part in the
assault. The appellants, however, denied in their
evidence, that they
made the aforesaid admissions: further their contention remained that
when they met the deceased during the
previous night he had already
been injured.

[10]
PW2 said in evidence, presumably on the same occasion referred to by
PW4, that the first appellant told the committee that
he had
inflicted the wound on the deceased’s head and that the third
appellant said that “they”, meaning the
appellants, had
assaulted the deceased with whips. It was put to PW2 in
cross-examination that not only would the appellants deny
that any of
them had assaulted the deceased but that when members of the
committee asked what had happened to the deceased PW2
replied that he
was responsible for the assault. What is more the first appellant
testified that after the committee members questioned
the teachers
(but not the appellants) about the death of the deceased, PW2
responded that “they”, meaning the teachers,
had
assaulted him and that PW1 added that he had assaulted the deceased
“moderately”. The first appellant also said
in evidence
that the appellants were not questioned at all; that PW4 was not
present when the committee questioned PW1 and PW2;
and that PW4,
after his arrival, asked no questions of either the appellants or the
teachers.

[11]
It is quite apparent from the aforegoing that there are substantial
disputes of fact on at least the following matters:

Whether
PW4 had questioned the appellants in the presence of members of the
initiation committee and, if so, whether the appellants
had admitted
to PW4 that they had assaulted the deceased;

Whether
the committee members had questioned the appellants and, if so,
whether the first and third appellants had made the admissions
as
alleged by PW2; and

Whether
the committee members had questioned PW1 and PW2 and, if so, whether
the teachers had made the admissions as stated by
the first
appellant.

[12]
In dealing with this aspect of the case, the learned judge accepted
the evidence of PW2 and PW4 to the effect that the appellants
had
admitted assaulting the deceased. He said that PW1 and PW2 could not
have admitted assaulting the deceased as, if this had
been the case,
there would have been no need to call the appellants to the
gathering. What should, perhaps, have been investigated
more
carefully is whether the appellants were already at the gathering
when PW1 and PW2 allegedly admitted having assaulted the
deceased.
After all this was the evidence of the first appellant. Leaving that
aside for the moment, it is quite clear from the
record that during
the evidence of the fifth appellant the learned judge asked the
witness whether the committee members were alive.
After he was
assured that they were, he said that he “wanted them” in
court as there was “much to gain”
in obtaining the
evidence of independent persons, obviously to resolve the dispute
between the Crown witnesses and the appellants.
Subsequently the
learned judge a quo again referred to the dispute between the
Crown and the appellants, whereupon the fifth appellant said that it
would be preferable
to call the committee members to clear up the
disputed issue. To this the learned judge responded:

“I am going to call one
or two members of the committee. I am going to do that.”

Shortly
thereafter the learned judge obtained the names of two committee
members who were not related to the appellants and at least
one of
whom was said to have been present at the gathering. Surprisingly
enough, however, he then considered dropping “the
suggestion”
that the committee members should be called on the grounds that their
evidence might be inadmissible as they
might “be said to be
persons in authority”. And in the event, no committee members
were called despite the fact that
they were available.

[13]
At the hearing of the appeal we referred counsel to the provisions of
section 202 of the Criminal Procedure and Evidence Act
and whether,
in the circumstances, the learned judge was obliged to call one or
more committee members to testify. The section
reads:

“(1) The court may at any
stage of the criminal trial subpoena or cause to be subpoenaed any
person as a witness or examine any person
in attendance though not
subpoenaed as a witness, or recall and re-examine any person already
examined.

(2) The court shall subpoena
and examine or recall and re-examine any person if his evidence
appears to it essential to the just
decision of the case.”

The
section is substantially similar to the corresponding South African
provisions (section 186 of the Criminal Procedure Act, 1977
and its
predecessors). Both make provision for the court’s
discretionary power to call a person and a duty to do so if his
evidence appears to it essential to the just decision of the case.

[14]
A proper reading of the record shows quite clearly that the learned
judge fully appreciated that on the question of the admissions
there
were irreconcilable differences between the Crown and defence
witnesses. It is also clear that the learned judge had expressed
his
firm intention to call at least one committee member to resolve the
disputes. He therefore had a duty to do so in terms of
section 202
(2) of the Act.

[15]
In R v Kubeka 1953 (3) SA 691 (T), Ramsbottom J said that a
judge’s duty of intervening in a case and of calling a witness
himself is an
onerous one and a duty that a judge does not lightly
assume. He further pointed out that a judge should consider various
factors
before considering whether to use his discretion (under
section 202 (1) of the Act) or whether to decide it is essential for
the
just decision of the case to call a witness (under section 202
(2)). It seems to me, however, that where a judge does not himself
indicate whether, after setting out the important factors, he intends
to call a person in terms of section 202 (1) or 202 (2),
it is right
and proper for a court of appeal to infer what the judge must have
intended. It is on that basis that I have arrived
at the conclusion
referred to in par [14] above.

[16]
In the leading case of Rex v Hepworth 1928 AD 265 it was
stated at 277 that:

“..…if once a
Court comes to the conclusion that it is essential to the just
decision of the case to call or recall a witness,
it becomes
imperative on the Court to do so, and no discretion is then left to
the Court.”

This
proposition may have been too widely stated as there may be
situations in which subsequent events during the course of the
trial
render it unnecessary to call such a witness (cf the obiter dictum
in R v Damana 1958 (1) SA 571 (E) at 572 H). But it is not
required that a final decision should be made on this point for there
were no later
events that had any bearing on this case and the
learned judge’s change of mind was, in my view, unjustified. It
was based,
as I have mentioned, on the ground that the evidence of
members of the committee might be inadmissible as they might be said
“to
be persons in authority”. The possibility of the
evidence being inadmissible was purely speculative: there was no
argument
on the point and no objection by either counsel to the
evidence being led. Moreover and even if there was the notional
possibility
of the evidence being inadmissible, this was an aspect
that could have been considered when the witness was called, after an
examination
of the relevant circumstances of his position and a
consideration of the submissions of counsel.

[17]
From the aforegoing it follows that the learned judge a quo
must have entertained a reasonable doubt on whether the appellants
had made the relevant admissions. Furthermore, and as I have
already
indicated, the finding in the judgment that the appellants did in
fact make the admissions was determined without considering
the
appellants’ own evidence. I only have to add that the
conclusion of the court a quo on this aspect of the case was
arrived at without the thoroughness that the issue deserved and to
emphasise in this regard that
the evidence of the appellants’
alleged admissions was the only evidence that directly implicated
them in the crime with
which they were charged.

[18]
It has been held that where the evidence of a witness is essential to
a just decision of the case, the failure to call him
could constitute
an irregularity (see S v B and Another 1980 (2) SA 946 (A) at
953 C). This appeal can, however, be disposed of without considering
whether or not there was an irregularity
that has led to a failure of
justice. In this regard counsel for the Crown requested this Court to
hold that the evidence of the
first section, dealt with in pars [4]
to [8] above established the appellants’ guilt without
reference to the alleged admissions.
This submission is untenable. It
is quite clear that the versions of the Crown and the defence on that
aspect are closely connected
to the other aspect and are also
mutually destructive. In the words of the learned judge, they
disclosed a “raging dispute”.
He nevertheless rejected
the evidence of the appellants mainly on the ground that the
seriousness of the head injury would have
precluded the deceased from
covering the 8 kilometres (from the school to where he encountered
the appellants and back) on foot.
This would have been a correct
finding if the medical evidence was sufficiently clear. The report of
the post-mortem, read into
the record, seems to me to be ambiguous to
say the least. It possibly reflects a diffused head injury consisting
of more than one
fracture. On the recall by the court the medical
practitioner was not asked if the head injuries were widespread or
whether they
were only consistent with a single blow to the head.

[19]
The appellants’ version was that the deceased had been
assaulted at the school on two separate occasions. It is so that
when
they first encountered the deceased he already had a head injury that
might have been serious but was apparently not life-threatening,
for,
according to their version, the deceased was able to run and to walk.
It is reasonably possible, therefore, that the head
injury could have
been aggravated when PW1, PW2 and David assaulted the deceased after
he was returned to the school, as the appellants
claim.

[20]
The court a quo also put forward other reasons for rejecting
the evidence of the appellants but these were insubstantial and
provide no assistance
in resolving the dispute. It is only necessary
to add that the Crown evidence did not provide a reason for the
deceased’s
sudden departure from the school, nor did it provide
a motive for the deceased to have been assaulted. Of course the Crown
was
not obliged to establish motive but the absence of motive leaves
the version given by the Crown witnesses with no inherent probability
(see R v Phiri 1958 (3) SA (A) 161 at 165 A-B), while the
appellants’ version that the deceased was assaulted by PW1 and
PW2, for not carrying
out his instructions as a prospective initiate,
provides a motive as well as a reason for his running away from the
Mophato.

[21]
The end result is that the Crown evidence falls far short of
resolving the disputed issues and in the absence of direct and
satisfactory evidence that the appellants assaulted the deceased,
they should have been acquitted.